Washington has laws against domestic violence, laws for restraining orders requiring individuals to stay away from certain people, and laws for court-ordered mental evaluation to prevent suicide or violence. Of course Washington State also has laws against the violent use of firearms other than in self-defense. However, none of these are sufficient for those who wish to strangle the Second Amendment through legislation, or in this case, ballot referendum.

Washington’s initiative i1491, the “Extreme Risk Protection Order Act,” goes far beyond these other laws, enabling, by a simple allegation, the often immediate confiscation of a person’s firearms and right to purchase or possess firearms, for a year or more.

The initiative is 21 pages long. Do “common sense” gun measures require 21 pages of legalese?

The measure is sold as a means of providing safety, being “designed to temporarily prevent individuals who are at high risk of harming themselves or others from accessing firearms by allowing family, household members, and police to obtain a court order when there is demonstrated evidence that the person poses a significant danger, including danger as a result of a dangerous mental health crisis or violent behavior” [Sec. 1 (1)]. Who wouldn’t want that, right? In fact, those are the same benefits of the other laws mentioned – with the exception that this initiative particularly targets a person’s Second Amendment rights.

Note that the summary presents what appears to be a reasonable standard for an issuing an order; requiring “demonstrated evidence that the person poses a significant danger, including danger as a result of a dangerous mental health crisis or violent behavior.” [Sec. 1 (1)] However, the actual standard is just an allegation made by a “petitioner” and a decision made by a judge, sometimes based on a discussion over the telephone [Sec. 5 (1)(a), Sec. 6 (4)].

“A petition must allege that the respondent poses a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm, and be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent; “ [Sec 4. (3)(a)] (emphasis added)

Although the initiative is sold as a resource for “family and household members” to stop a possibly mentally ill or potentially violent people from having access to guns, the allegation can be from someone as distant as a jealous brother-in-law, to an ex-girlfriend who hasn’t been involved for almost a year, to an estranged wife who wants to punish her husband, to a partner from a bad one-night-stand [Sec. 3 (2)]. The expectation that abuse will not occur, even predominate, given such a low bar of evidence from such a broad base of potentially biased and unscrupulous petitioners is absurd.

Additionally, the petitioner is required to “Identify the number, types, and locations of any firearms the petitioner believes to be in the respondent's current ownership, possession, custody, or control;” [Sec. 4 (3)(b)] So if the petitioner lies or is mistaken and the respondent doesn’t surrender all of the guns listed, law enforcement will obtain a search warrant and tear the respondent’s home (and life) apart based on a single statement [Sec. 10 (4)]. The initiative itself even presumes that the petitioner is someone who is not readily able to identify firearms, requiring the State to put together a picture guide to help complainants (a better word for petitioner) to identify their target’s guns [Sec. 16 (1)(b)].

Furthermore, how does a petitioner know, to the point of swearing under oath, that a person is a danger “by having” firearms? Perhaps an independent mental health professional might have a reasonable analysis, but not an involved party. The answer is that if the target of the order, the respondent, has access to firearms, any threat or fear, perceived or real, will be believed in in the petitioner’s mind and in court, based on the proximity to firearms. That is, the “danger” will always be presumed and the order always issued as a matter of caution (and political liability).

This author knows a man who, in the 1990s, took his few guns and stored them with a friend because he was concerned that his estranged wife would accuse him of threatening her. He wisely chose to defuse any potential allegations of violence. This author knows that the couple often created verbal fireworks in arguments, and the wife even, in anger, broke some of the man’s belongings over the life of their marriage, but there was never bodily violence on either side. This author believes that had i1491 been available, the wife would likely have lied on a petition to punish her husband. What is perhaps even worse is, had this situation occurred in Washington State today, the man would have committed a crime in storing his guns with a friend without a ”universal” background check to transfer ownership to his friend.

I1491 is sold as having due process protections for people’s rights, and it does offer a detailed process for due process in court through which a respondent can defend themself, despite the lack of solid criteria for issuance of an order. But it also has a “bypass feature” by which a judge can issue an “ex parte extreme risk protection order,” even over the telephone, without the respondent even knowing that the process is happening if a judge is convinced of the urgency [Sec. 6]. Since the entire initiative is built around the urgency of “extreme risk,” it seems very likely that this provision is the operative provision, and it is certainly the one that the anti-Constitution initiative proponents are focused on to support de facto confiscation of guns.

Once again, the standard is the petitioner “including in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to self or others in the near future by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” All it takes is a story; real, perceived, or fabricated. This is just like denouncement in the French Revolution or being named a Communist under McCarthyism. This is not proper due process.

While under an ex parte order a hearing is still required to be scheduled, but the ex parte order requiring immediate surrender of firearms will be served first – this is pre-crime a la Minority Report. Thereby due process is thwarted. And since law enforcement will be delivering an ex parte order as an “extreme risk” situation, it will be treated like a search warrant (or accompanied by one based on the same single allegation) and firearms will be confiscated from the respondent on the spot. [Sec. 10 (2) & (4)]

So, in the end, Washington initiative i1491 is a “backdoor” gun confiscation measure meant to strangle the Second Amendment apart from constitutional due process.

Some additional closing thoughts…

i1491 states that the extreme risk protection order is for a year, not “up to a year” as this news story alleges [Sec. 5 (2)]. The reporter clearly just read the proponent’s summary and repeated it without research. A respondent may petition once a year to have the order removed, but “The respondent shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” That is, a person has to prove that they are not going to do anything, which is impossible. This is also not the way that American justice works. In fact, the presumption of innocence goes back at least as far as ancient Roman law.

The legislation has paragraphs claiming data on acts of violence using firearms and stating that, “Studies show that individuals who engage in certain dangerous behaviors are significantly more likely to commit violence toward themselves or others in the near future,” but cites neither the data source nor the “studies” [Sec. 1 (2) & (3)]. Such claims should never be allowed to stand in legislation and be codified as being true without academically accepted data and references.

i1491 claims a “dangerous mental health crisis” [Sec. 1 (1)] as rationale to confiscate someone’s firearms. This is clearly pretending suicide prevention, yet the initiative makes no attempt to define “mental health crisis” or reference any established medical definition (there is none). Rather, “mental health crisis” is a code-term for an opportunity to take advantage of a person in a time of personal trial. Instead, if those claiming concern were truly concerned, they would petition for a mental health evaluation rather than simply trying to take firearms from the person.

Under the initiative, the respondent must request return of guns if and when the order is terminated, and guns are destroyed if not claimed. However, no time frame is offered for claim after the order is lifted, so guns could theoretically be destroyed the day that the extreme risk protection order is terminated if the respondent is not there and ready to claim them [Sec. 11 (1) & (3)].

And one more thing…

There is a reason that the United States Constitution requires state governments to have a republican form of government [Art. IV, Sec. 4]. Ballot initiatives for binding legislation are mob rule. Laws made by 50%+1 person of those voting, likely 99% of whom have never read anything but a ballot summary, or only heard biased television ads, are bound to flawed if not intentionally insidious.

The text of The Extreme Risk Protection Order Act.

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